It’s not the Crime It’s the Cover Up – Why You Don’t Hide Evidence

Posted on February 04, 2016

Most of the topics discussed on this blog are geared towards substantive areas of the law, but sometimes it’s the process that creates the biggest risk to businesses. Those who have had the experience of being sued know how onerous, expensive, and frustrating the discovery process can be – having to search through, filter, analyze, catalog, and then assemble mountains of digital and paper records, most of which eventually prove to be irrelevant to the dispute at hand. For the uninitiated, civil litigation rules require both sides of a dispute to turn all their evidence over to the other side, and to respond fully and completely when the other side requests specific documents and other information. In many cases, the best evidence is in the possession of the other party, and the rules require that party to turn it over.

Clients, as well as lawyers, continued to be awed at the time and money this process requires, and for the many businesses who don’t litigate often (and most do not), the internal resources burned complying with discovery requests can be devastating. Additionally, some litigants know “bad” evidence exists within their records, and think by hiding it no one will ever know. When asked, these parties either outright lie about the existence of certain evidence, or parse the request so finely that they can rationalize their way out of producing responsive information. It doesn’t matter whether this is done out of some misperceived convenience, or whether the motive is more nefarious – parties who withhold information can be, and frequently are, punished for it, even if the other side is not hurt.

This lesson was dearly learned by the defendants in the Stryker Corp. v. Ridgeway, et al., U.S. Dist. Ct. W.D. Mich. 1:13 cv 1066, after the district court imposed severe sanctions on a defendant who allegedly lied about the existence of emails and other electronic records so he would not have to turn them over in discovery. The plaintiff, Stryker Corp. (“Stryker”), fired Christopher Ridgeway (“Ridgeway”) when it was discovered he was running two competing side businesses, that Stryker believed Ridgeway was using to divert business from Stryker. Stryker also believed Ridgeway was conspiring with another of Stryker’s competitors to steal Stryker’s employees, funnel confidential Stryker information to this competitor, and sabotage Stryker’s business. Stryker believed it would find all the proof needed to confirm its suspicions in Ridgeway’s personal emails, text messages, and cell phone records. But, as Stryker learned, obtaining those documents wouldn’t be as easy done as said.

When Ridgeway produced few responsive documents in discovery, Stryker claimed shenanigans. Ridgeway explained that emails within large date ranges had been deleted by his webmail provider, that he had not used a specific cell phone account during the relevant time period (as the reason he did not produce phone records for that number), and denied certain documents ever existed. Undeterred, Stryker issued a subpoena to Verizon, which disclosed the account in question had been used. Stryker also discovered emails Ridgeway denied sending, in the possession of a third party he was accused of improperly soliciting for business, and when Stryker hired a forensic computer technician to examine Ridgeway’s devices, found more than 188,000 additional communications that Stryker had been told no longer existed.

Based upon the newly-discovered information, Stryker move the Court to sanction Ridgeway for violating the discovery rules. In opposing the motion for sanctions, Ridgway argued he shouldn’t be punished because Stryker ended up getting the information it sought from third parties (Verizon and the customer, and from the forensic examination), so even if Ridgeway didn’t produce it himself, or if he had destroyed it, there was no harm done. Ridgeway also argued that the documents he was accused of hiding were not relevant to the underlying dispute, so even if he didn’t produce them, the lack of harm meant he should receive no punishment. The Court disagreed and, after a hearing, found that Ridgeway had acted in bad faith by not making full disclosures in the case. The Court ordered him to pay the Stryker’s attorney and expert fees to obtain the information the hard way. Stryker asked the court to penalize Ridgeway by deciding the case in Stryker’s favor, which would have been the ultimate punishment, but the Court declined, instead scheduling the case for trial later this month.

Ridgeway’s “no harm no foul” argument was rejected, and he was punished for hiding evidence, and then lying about its existence. It ended up being irrelevant that what he hid or tried to destroy was not important in the grand scheme of the lawsuit. There was no smoking gun revealed in the discovered evidence, although, according to Stryker, much of what was found incriminated Ridgeway nonetheless. The point being that Ridgeway’s act of being accused of diverting business from his employer was made that much worse when he tried to cover it up. It also made his argument that the evidence was irrelevant hard to accept – because it was illogical that he would hide or destroy irrelevant evidence.

The other issue – and perhaps a worse problem than having to pay the other side’s expenses – was the harm Ridgeway did to his credibility. When the case goes to trial, Stryker’s lawyers can ask the Court to inform the jury of Ridgeway’s conduct trying to hide evidence, and the jury may hold that against Ridgeway when deciding if he is liable to Stryker. Imagine the difference in possible outcomes when going before a jury claiming you did nothing wrong and turned everything over versus claiming you did nothing wrong after having been sanctioned for unsuccessfully trying to hide evidence.

In our experience litigating – and we have done our share of it – the cover up is almost always worse than the crime. If you think producing 188,000 emails and text messages voluntarily is expensive, try paying the price after unsuccessfully trying to hide those same emails and text messages. We should all know by now that nothing is ever truly deleted, and that is especially true now that experienced litigators know where to look. When dealing with emails and phone records especially, there is always another party to the conversation whose records can be discovered. The litigation lesson from Stryker is that telling the truth is still the best strategy.